Bill C-75 (Historical)

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for a term of 14 years or more and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) re-enact the victim surcharge regime and provide the court with the discretion to waive a victim surcharge if the court is satisfied that the victim surcharge would cause the offender undue hardship or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.
The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence, as well as the requirement to determine whether to make such an order.
Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.

[Prof. Elizabeth Sheehy]

Okay.

Thank you for inviting me to address Bill C-75. As you know, I'm professor emerita at the University of Ottawa faculty of law, where I've taught criminal law and procedure for 34 years. My life's work is focused on law's response to violence against women.

I don't speak on behalf of any group, but whenever I have the opportunity to work with the feminist advocates of the independent women's movement, I take that opportunity. That's because the leadership and analysis of front-line women like Daisy is based on decades of front-line experience and strategy in confronting violence against women, as well as on their unwavering political commitment to the liberation and equality rights of all women—so I say what she said, but I'll say a few more things.

I agree with Daisy that without attention to the specific experience and conditions of women's lives and men's violence, it's really hard to develop sound criminal law policy and legislation. When we use these vague and generic terms like “spousal assault” and “domestic violence” and we don't name it as men's violence against women, I think we lend the misleading appearance of parity between men and women when it comes to violence, and we are incapacitated from developing effective legal strategies that target the massive threat that men's violence presents to women's lives, freedoms, and equality rights.

I agree with Daisy. There's a problem here. It makes it hard for us to get the right language and the right strategy. The good intentions behind the provisions in this bill are to some extent undermined by the fact that the bill is not anchored in a national violence against women strategy or informed by front-line feminist expertise.

I had four points to make, but Daisy has made several of them.

I was going to talk about the issue around the disparity in sentencing. We have all the summary conviction violence offences being raised to a maximum of two years, except for sexual assault. That's odd. It's anomalous. It I think reflects bifurcated thinking, putting domestic violence over here and then sexual assault over there.

Like Daisy, I am not a proponent of longer jail sentences. I'm not sure that's where we should be focusing our energy, but there is a message in this bill that probably needs to be corrected. We should be using the two-year maximum for all the summary conviction offences here that involve violence against women.

The other point I wanted to make is that the bill is now going to aggravate sentences for crimes of threat or violence based on commission by a former or current intimate partner, including a dating partner. This amendment does not include those men who obsess about and stalk women who've refused them access to even a dating relationship. These men are motivated by the same ideas that infect other men who assault intimate partners: ideas that women belong to them, owe them something or must be punished for failing to love them or obey them. They can be as dangerous as men who batter their wives or ex-partners. The threat they pose to the women they harass should be recorded in the criminal justice system's records to help assess the risks they pose to those women and to other women in the future.

The new definition also fails to respond to the targeting of others by the perpetrator, whether that's new boyfriends, family members, mothers, fathers, sisters or friends. Perpetrators may harm or threaten others as a strategy to intimidate and control the woman, and they might also strike out against those who intervene to try to protect her. These forms of violence are part of the dynamic of wife-battering and should be similarly treated for the purposes of these amendments.

Let me just say that for each of my suggestions I do have legislative language that I would propose. I'm not going to read that now. It's in my submission, which the clerk has in hand.

I've already mentioned the sentencing issue, and the third thing I want to address is the strangulation point that Daisy has mentioned. I agree that this is a good amendment. We ought to be exaggerating or raising the offence of either assault or sexual assault to tier two, to that second level, if strangulation, choking or suffocation is involved. We know from the research that strangulation poses heightened risks of brain damage and death. It's a significant risk factor for lethality and intimate femicide, and it's used by men to terrify and subjugate women, whereby the offender communicates the message literally that her life is in his hands.

It's critically important as well that a conviction under this offence will show up on an offender's record as assault by strangulation or sexual assault by strangulation. I've checked that out. It appears that it will in fact appear on the record in that manner, which is really important in allowing police officers, prosecutors, and judges to understand the risk that this particular individual poses.

This addition to the code follows reforms in U.S. states as well as other jurisdictions that specifically recognize men's use of strangulation as requiring denunciation, tracking, and alleviation of the burden of proof for the Crown. However, other Criminal Code amendments are absolutely necessary to breathe life into this amendment. This is because the law is seemingly unsettled as to whether women can consent to the infliction of bodily harm that's neither trivial nor transitory once we introduce the context of sexual relations.

I can say a lot more about the legal problem here. There's a legal problem, but there's also a practical problem. The practical problem is the society in which we live. We're willing to suspend our disbelief and we're prepared to acquit someone on the possibility that even on a first date, as in the Ghomeshi case, women can somehow agree to strangulation before they even exchange a greeting and without any discussion of what's involved or at risk with strangulation.

There's simply no doubt that consent will be raised by those men charged with this new form of assault or sexual assault. I don't think there's any justification in criminal law policy to carve out an exception to the general rule that people can't consent to the infliction of bodily harm that's serious and non-transitory. I think an exemption would have sex-discriminatory impacts for women, particularly women who experience male violence and those subjected to the violence inherent in prostitution. I think Bill C-75 needs a section that anticipates and closes this avenue of defence if we are to succeed in condemning strangulation as a specific form of criminal offending.

The fourth point, on reverse-onus clauses, has been ably covered by Kathryn Smithen. It doesn't often happen to me that a lawyer says something more radical than a law professor, but she did. I was going to make the point Daisy made, that we need the reverse onus to apply to those men who are found guilty but for whom there is no conviction. However, I actually agree with Kathryn: I think we have the evidence to support a reverse onus for men charged with domestic violence offences, regardless of whether they've previously been found guilty or convicted. That's because there was a study by the Department of Justice a few years ago that specifically examined domestic violence offenders and found that they breached their conditions 50% of the time, and of those, another 50% were actually violent breaches, so this is demonstrably a high-risk category of offenders who deserve a reverse onus in order to give women some measure of safety to escape or hide while the case is adjudicated.

I will conclude there. Thank you very much.

[Daisy Kler]

Okay. I have one more point.

With regard to strangulation, we think the change is good, but it doesn't reflect the potential lethality of strangulation.

In terms of sentencing, the shift to include former partners and dating partners is significant, because women who have left abusive men are at increased risk of violence. Although Bill C-75 would allow the court to raise the maximum sentence for a repeat offender who has a record of domestic violence offences, most judges don't apply maximum sentences to domestic violence, so this is unlikely to have an impact.

I note, however, that summary conviction offences that include most forms of male violence have their sentencing maximum increased from six months to two years, except for sexual assault. This is an odd omission. It suggests that sexual assault doesn't happen to battered women. I think this reflects a common myth that somehow women who experience intimate partner violence are different from the women who experience sex assault. In fact, abusive men's physical assault often includes sexual assault.

I'll stop there. I have a few more points, but hopefully I'll get to them in the questions.

Thank you.

[Daisy Kler]

I would like to thank the committee for inviting me to speak. I thought I had 10 minutes, so I will have to be faster than I'd like.

First of all, the Vancouver Rape Relief and Women's Shelter is Canada's first rape crisis line. We opened in 1973, and we operate a transition house for battered women and their children. We receive about 1,300 new calls per year and house about 100 women and their children who are escaping violent men. We offer advocacy and accompaniment to police, court, and hospital, as well as oftentimes to immigration and welfare.

In the course of their stay, we assist women with finding housing, obtaining a lawyer for family law matters such as custody and access, making a police statement, finding day care, and almost everything they need on a daily basis. Also, if needed we find translation and assist with immigration and refugee issues.

Vancouver Rape Relief is a collective of paid and volunteer members. Our membership includes former battered women, women who have exited prostitution, and sexual assault survivors. Our members vary in age, race, and class.

Our 40 years of front-line work informs our understanding of all forms of male violence against women, including wife assault, incest, rape, sexual harassment, and prostitution.

We have been widely consulted for our expertise and our understanding of male violence against women, locally, nationally and internationally. For example, we've also been contributing our expertise on violence against women in provincial and federal consultations, most recently to this committee on trafficking and prostitution, and for Bill C-51.

We also participate widely in the women's movement. Since 1997, we have held an annual all-day event in the form of a public conference in memory of the Montreal massacre. Rape Relief has led in-depth facilitated discussions on key issues regarding male violence against women. The participants include local, national, and international equality-seeking women's groups and feminist front-line women's service workers, and the event is highly attended by members of the public and other feminists in the city.

In 2011 we were part of the global Women's Worlds conference in Ottawa, and with CLES—Concertation des luttes contre l'exploitation sexuelle—we organized an international trilingual discussion among women experts who discussed prostitution as male violence against women. We hosted discussants from first nations and from 15 countries around the world.

We also work in coalition with other anti-violence workers and organizations, such as the Canadian Association of Sexual Assault Centres, the Canadian Network of Women's Shelters and the BC Society of Transition Houses.

Vancouver Rape Relief has advanced and pursued public cases where there is a women's equality interest. For example, Rape Relief was a party with standing in the institutional and expert hearings for the National Inquiry into Missing and Murdered Indigenous Women and Girls. We're part of a national coalition of front-line workers that has been granted intervenor status in the appeal of Bradley Barton, who was found not guilty for the murder of Cindy Gladue. Our oral submission will be heard in the Supreme Court of Canada on October 11.

What does our front-line experience tell us? Most women who have experienced male violence do not engage with the criminal justice system. Roughly 30% of the women who call us have done so. That is high, because most rape crisis centres are only dealing with sexual assault, for which the numbers are lower. However, because we're dealing with battered women as well, sometimes the police are called for them by neighbours and other people. They're not the only ones calling, so that makes our numbers a bit high.

Oftentimes the women we work with in the transition house have the police called on them, but if they themselves call, they don't see their cases get to court, and even fewer of those cases result in criminal convictions. Our work shows that most of the women who've stayed in our house and who have tried to use the police don't get more than a police file number. It's uncommon for there to be any arrest or charges. It's extremely unlikely that there will be a conviction.

Women don't have faith in the criminal justice system. They don't have faith that it'll work in their favour because history has shown that it doesn't. Although we welcome some of the changes in the bill, it must be acknowledged that these changes will affect a small portion of women who have experienced male violence.

I'm hopeful that some of the measures will have a positive impact. We believe that protecting women's equality rights does not have to come at the expense or violation of men's charter rights. We do take the position that it's battered and sexually assaulted women who rarely find justice or have their charter rights upheld. We argue that the existing laws must be applied as they relate to battered and raped women.

We recognize that it's poor, racialized, and indigenous men who fill the prisons, not because they commit more crimes against women but because the criminal justice system unfairly criminalizes these populations and lets rich white men off the hook. It's a poor, racialized, and indigenous woman who is most likely to be arrested if the violent man calls the police on her.

We don't believe that prisons successfully reform men, and we don't call for longer jail sentences. However, communities do not hold men accountable for the violence men commit. Therefore, women will continue to need the criminal justice system for protection, and we feminists must fight for women's access to the rule of law.

We welcome some of the changes in the language, such as the change from “spousal” to “intimate partner” and the expansion of the definition to include former partners and dating partners because it better reflects the range of relations women are in outside of marriage. This change also allows for a broader and deeper interpretation of the continuing power that abusive men exert over women after the relationship has ended since a woman is most at risk in the first 18 months after leaving an abusive man. We see that men use violence towards women at all different stages of a relationship, including after it ends, so the change to “intimate partner” violence is good because it could mean a higher chance of him being held responsible for his behaviour.

However, this language change does nothing to correct the fundamental flaw in this bill. Nowhere in this bill is male violence against women acknowledged. It is understood worldwide that male violence against women is a social reality that cannot be denied. This bill does nothing to reflect or acknowledge the fact that the perpetrators of violence are overwhelmingly men and that the victims of that violence are women.

The change to the reverse-onus bail in cases of male violence is an encouraging step to help reduce the number of men who immediately reoffend and attack their female intimate partners. It's a positive step because the onus is on him to prove why he should be let out if he has a history of domestic violence. It sends a message that violence against women is a serious crime.

It is, however, unfortunate that this reverse onus will not apply to those men without a criminal record for domestic violence. This includes convicted persons who have received an absolute or conditional discharge. In a case in which I was working with a battered woman, her abuser was a lawyer. He argued to the judge that he needed to go to the States to visit family. Even though he admitted that he was guilty, she granted him a conditional discharge. If he batters again, which he likely will, he won't be held on this reverse onus.

We think that eliminating the mandatory use of preliminary inquiries is a positive step. We know from our own experience of accompanying women to court that preliminary inquiries are used by the defence as an attempt to discredit the women's testimonies by pointing out minute discrepancies between their police statements, their preliminary inquiry evidence and their trial testimonies. As a recent example, in a trial I attended last month, the woman was testifying, and she said in her pretrial, “I think I wore a cardigan,” in one statement, and in another statement she said, “I was wearing a cardigan.” The defence cross-examined her gratuitously on the difference, implying that because she didn't use the exact same wording, she was lying. This misuse of preliminary hearings in sexual assault trials is common, and we're glad to see its use limited.

Bill C-75 makes strangulation a more serious level of assault, equal to assault causing bodily harm. Since strangulation is an indicator of the likelihood of increased and more severe violence, including wife murder, this change better reflects the seriousness of the crime—

[Kathryn Smithen, Barrister and Solicitor, Child and Family Advocacy Services, Smithen Law, As an Individual]

Thank you.

I thank the committee for the kind invitation I got a mere four days ago. I'm happy to be here and happy to speak about the provisions of Bill C-75 that deal with the justice system's response to intimate partner violence.

I'd like to say straight up front that I appear with two fundamental biases, both as an individual and a legal professional. I think I should bring those biases to the committee's attention in advance of my submission.

The first one is that I was a victim of severe domestic violence over 25 years ago. My ex-spouse was charged and tried with 17 criminal offences, including strangulation and sexual assault. This led to my appearing as a complainant witness in a Superior Court criminal case against my former spouse several years after the offences took place, and it sadly led me also to become the mother of a Crown witness. My now 30-year-old daughter testified when she was nine years old about violence she saw when she was four years old.

My second bias is that in my professional life I was an articling student for a criminal defence counsel, but chose very deliberately to focus on family law after my call to the bar of Ontario seven years ago, when I was 49 years old. In that current work I represent many women who have suffered through domestic and/or sexual violence and whose children have been affected by it too.

As I said earlier, the focus of my professional work is a deliberate choice that I made. Criminal defence work, although I recognize it as important and vital to any society that values the rule of law, was not a very good fit for me, probably because of my own experiences.

I made it a professional priority, consciously, when I became a lawyer to try to represent women and their children in ways that hopefully addressed the violence in their domestic lives in the justice system, and I always make it a goal to try to effect change where possible to make their lives safer.

There are many intersections between family and criminal law that one could argue might help me to do that, but I can truthfully express frustration before the committee on trying to achieve those goals daily.

I'm choosing today to focus on the issue of judicial interim release, which I believe needs to be amended in a way that makes victims more safe.

My view is that if Bill C-75 were amended in a way that provides for a reverse onus on persons charged with two or more acts of intimate partner violence, it would serve victims better than focusing on what I call the back end, which is waiting for a conviction.

Making this a condition only in cases where there's an actual previous conviction, which I understand is the current proposed amendment, is problematic for the following reasons. One is that intimate partner violence is often under-reported. Whether they're before the courts for the first time or not, it is not unusual, as we all know, for there to be a long history of violence before an alleged offender is actually identified by the police. Intimate partner violence, as we know, is highly secretive. It's not unusual for that historical record to be hidden not only from authorities but also from family members, friends, and co-workers, until an incident brings the family to the attention of authorities. The secrecy inherent in domestic violence often imposed on the complainant through the cycle of violence or through her own shame makes it very difficult for the victim to seek help.

Also, women are in more danger once the secret is out. The public shame and the effort to pressure her into backing off or testifying differently is a new source of pressure, as well as a new source of real danger. The high rate of complainants being pressured to recant or not appear at trial makes this a unique offence, in that obtaining a conviction for it, as opposed to other offences, is far more difficult.

In the time that I worked for a criminal defence counsel as an articling student between 2008 and 2009, my principal, who will remain nameless and did not appear today, was consistently telling his clients charged with domestic violence offences to refuse any offer by Crowns to resolve cases. The advice given was constantly that you can count on the complainant not to appear, which would result in the complete withdrawal of charges.

Sadly, he was mostly successful.

In intimate partner violence cases, conditions to bail are commonly breached or outright ignored. I believe this makes a mockery of the judicial system. This is a known and undisputed fact in criminal courts. Making the bar for a reverse onus only if there's an actual conviction raises the bar far too high and far too late.

As legislators and lawyers, we don't need convictions to know that this offence presents a higher likelihood of danger to the victim than others. I believe that releasing an alleged offender back into society is short-sighted, and if he or she is charged with two or more offences, it's a recipe for danger.

In my work as a family lawyer, I see clients after they've gone through the criminal justice system. I've heard Crowns offering peace bonds in intimate partner violence cases many times. This means there will never be convictions.

A variety of reasons are offered for this position. These are a smattering of the ones I've heard in my very short career.

“Domestic violence is a social problem; it's better addressed outside the justice system.”

I've heard some Crowns rationalize that victims are better served with partner-abuse counselling—which I would agree with, and would be great, if there was an admission of responsibility and a change in behaviour outside the counselling room. This sadly doesn't happen very often.

I have also heard the argument that putting the offender out of work—which is argued will happen if there is a criminal conviction—will have a negative impact on the offender's ability to pay support, as if a victim's safety should take priority over support.

I've heard even more jaded remarks, such as “She's going back to him anyway”, as if that's an acceptable justification for not pursuing a conviction.

While obviously there's merit in some of these arguments, they don't treat the complainants with the respect that any person in the justice system is entitled to. They defeat the very purposes of this well-thought-out legislation. They're not keeping complainants or their children safe. Often what I see in the family court system is that when the criminal course disappears through the peace bond process, the offenders carry on in the family cases as though the offence has never officially happened in the justice system, and they return to the cycle of terror against their victims.

In the family law system, where many family lawyers like me are trying to bridge the gap to create safety plans for our clients, we are then undermined by the Crown's position taken in the criminal case.

In short, the bill is sending a message that the justice system treats domestic violence as a less serious crime than stranger-on-stranger crime, which I'm confident to say is not the goal we're trying to achieve.

I realize that much of what I have submitted today is contrary to much of the case law and the submissions of my esteemed colleagues in the criminal defence bar. I have long been criticized in legal circles for the views I have told you today and for my ideas about reform. In law school I was teased relentlessly by a fellow student, who acted as though I were a three-headed lizard for suggesting these things. I stand by them.

Sadly, I've heard people in the criminal defence bar ridicule victims' rights bills and efforts. I was very bewildered last year to hear an esteemed member of that bar criticize her Crown colleagues at a continuing professional development program for calling complainants “survivors”, as if that term was somehow offensive.

Nothing I have proposed today would diminish the right to make fair answer in defence or reduce an accused person's charter rights, but it would offer the victims of violence in intimate relationships the recognition that their charter rights—specifically the right to safety, liberty, and security of the person—are valued and protected by Canadian institutions such as this House.

I thank you very kindly for the opportunity to make these submissions.

[Daniel Brown]

One of the things I spoke about before is that there are already tools on a case-by-case basis to avail yourselves of at a preliminary inquiry. A direct indictment, with the consent of the Attorney General, sends a case directly to trial.

In cases where there's a particularly vulnerable complainant, there already exist tools to skip over a preliminary inquiry. Again, we want to shelter complainants, but we also want to protect and shelter the presumption of innocence. There needs to be an appropriate balance struck between the two. Perhaps the answer isn't to eliminate preliminary inquiries in all cases.

If we're particularly talking about vulnerable victims, because we've maintained this threshold of a life sentence, it means that, okay, now we've protected the sexual assault complainant, who won't have to testify twice, but the victims of an aggregated sexual assault, because it carries a life sentence, or the victims of an aggregated assault or an attempted murder will still have to testify.

Bill C-75 is just an imperfect solution to that problem of protecting vulnerable victims in any event.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you to the witnesses for your very interesting testimony today.

This is to Professor Silver or Mr. Brown. You spoke at length about preliminary inquiries, as have a lot of other witnesses. The Canadian Bar Association gave us some stats. They said that only 54% of Superior Court cases are subject to preliminary inquiries, out of which 25% of eligible cases actually opt for a preliminary inquiry. The proportion of cases with a preliminary inquiry does not exceed 5% of the overall caseload in any part of Canada, and at most, 2% of all court appearances are used for preliminary inquiries, and the vast majority take two days or less.

My understanding from all of the testimony we've heard is that only a very small number of cases use preliminary inquiries. We've heard a substantial amount about the negative impact that would be imposed on the justice system if preliminary inquiries were taken away. Can you explain how many people would be impacted if preliminary inquiries were indeed taken away, as is suggested in Bill C-75?

[Howard Chow]

In respect to that, I understand there are different perspectives and I understand the intent in terms of where they're going. I think that where the challenge is for us. The position of the CACP is that the difficulty will be in capturing that DNA request and putting in that submission. That's where it falls.

I know there were other panels that discussed what it's suggesting. The new proposal with Bill C-75 is that there may be fines that are eligible, but those are, again, eligible right now as well.

I don't know if I've quite answered your question.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Some of the offences that the government is proposing to hybridize are very serious in nature. You pointed, for example, to terrorism-related offences. There's impaired driving causing bodily harm. There's kidnapping a minor. Maybe you could speak to that issue.

Another one is with respect to individuals who are subject to long-term supervision orders—very dangerous individuals. Right now, breaches of LTSO constitute an indictable offence. Under Bill C-75, that would be hybridized. Perhaps you could speak to that.

[Howard Chow]

Good afternoon.

I'm Deputy Chief Constable Howard Chow of the Vancouver Police Department. I'm joined by Rachel Huntsman, Q.C., legal counsel with the Royal Newfoundland Constabulary.

Distinguished members of this committee, on behalf of Chief Constable Adam Palmer, president of the Canadian Association of Chiefs of Police, I'm pleased to be given the opportunity to speak before you today. I should clarify that because of scheduling conflicts last week, we're here to discuss issues with Bill C-75 that are broader than just the preliminary inquiries.

Overall, the CACP supports Bill C-75 and the clear intention by Parliament to modernize the criminal justice system and reduce court delays and judicial proceedings. In the interest of time, my comments will focus on amendments that the CACP views as having a direct impact on police powers and operations.

First, I'd like to discuss routine police evidence. This bill would amend the Criminal Code to allow police officers to provide evidence by way of affidavit, eliminating the necessity for them to attend court. While the CACP supports this amendment, our position is that the current definition is too broad and that a clarification of “routine police evidence” is required. The proposed amendment fails to delineate what type of police evidence would be acceptable, thereby potentially contributing to further inefficiencies through pretrial motions.

The next area of concern relates to the judicial referral hearings. While the CACP supports an option for police to divert an accused away from bail court for administrative justice offences, it is anticipated that the judicial referral hearing process will result in a lack of documentation of these same offences into CPIC. This lack of documentation means that police officers from other jurisdictions will be incapable of accessing the full criminal history of an offender. This is vital information for law enforcement when deciding whether to release a person and under what conditions.

As well, in 2008, the offence of failure to appear was added to the list of secondary designated offences. This information was provided to us by the National DNA Data Bank: They indicated they received upwards of 36,220 submissions under this section of the Criminal Code and that these submissions have yielded 1,157 matches to a DNA profile in a criminal index, including 55 homicides and 107 sexual assaults. The concern is that if an offender undergoes a judicial referral for a failure to appear instead of having a charge laid, there'll be no submission of the offender's DNA.

Next, the CACP supports the principle of restraint as it relates to indigenous and vulnerable populations. However, proposed section 493.2 places considerable onus on a police officer at the time of arrest to try to identify who falls within this classification of offender. A reality of policing is that arrests are often made in the middle of the night, with little known about the person's history and background. The CACP recommends amending the section to require that a police officer give particular attention to the circumstances of accused persons who appear to be indigenous and/or belong to a vulnerable population.

Further, the CACP recommends that a definition of “vulnerable population” be included in Bill C-75. Factors such as a person's ethnicity, economic status, drug dependency, age, mental health issues, or overall health are difficult to measure and assess out in the field. A clarification of what is defined as a “vulnerable person” would assist the police in meeting the requirements of this section.

I'd like now to address a significant concern for CACP, and that is the hybridization of indictable offences. This amendment will affect 85 Criminal Code offences, including a number of terrorism-related ones. Currently, these are classified as secondary offences under the Criminal Code. If the Crown proceeds by indictment and the offender is convicted of one of these offences, the Crown can request that the offender provide a DNA sample for submission to the National DNA Data Bank; however, if these 85 offences are hybridized and the Crown elects to proceed by summary conviction, the offence will no longer be deemed a secondary offence and a DNA order cannot be obtained.

The submission of DNA samples to the data bank is used by law enforcement to link crime scenes and match offenders to these crime scenes. Removing these indictable offences from potential inclusion into the data bank will have a direct and negative impact on police investigations.

Again, the numbers that follow were obtained by the data bank, and they demonstrate how submissions of these 85 indictable offences have assisted in matches to profiles for primary and secondary offences.

During the period between June 30, 2000, and February 21, 2018, during that 18-year period, the data bank received submissions for 52 of these 85 secondary offences, which resulted in 9,677 submissions to the NDDB. Of these 52 indictable offences, 22 led to 588 matches being made to a DNA profile in a criminal index, together with 221 matches to primary offences, which included 19 homicides and 24 sexual assaults.

We're proposing a solution to this, and that would be to list these 85 indictable offences as secondary or primary offences under section 487.04 of the Criminal Code, which will permit a DNA order to be made regardless of the Crown's election.

The final point I'd like to discuss is the Identification of Criminals Act, subsection 2(1). It provides that a person in lawful custody and charged with or convicted of an indictable offence may be fingerprinted or photographed. Under Bill C-75, the accused can still be compelled to appear under the terms of an appearance notice or undertaking for identification purposes. However, the case law has established that the appearance notice has to be confirmed by a judge or a justice before the person is considered to be formally charged with the offence.

A person who is under arrest and in lawful custody of the police cannot be fingerprinted or photographed until a charge is laid. The problem lies in the fact that once the Crown has elected to proceed by way of summary conviction, the offence is no longer deemed an indictable offence and the accused cannot be identified under the Identification of Criminals Act. This means that a significant number of charges will not be entered on CPIC, resulting in out-of-province police officers, Crowns, justices, and judges not knowing if the arrestee or accused has a pending case or a previous conviction.

The CACP is recommending that the Identification of Criminals Act be amended to allow for fingerprinting on arrest, with proper safeguards in place to protect the integrity of the process. CACP is also recommending that the ICA should be amended to allow fingerprinting for all Criminal Code offences, or at the very least to allow fingerprinting notwithstanding the Crown's election.

Finally, the CACP supports amendments that pertain to the leveraging of technology for the police community, while encouraging strong leadership and guidance in establishing appropriate standards related to the introduction and implementation of technology.

We are encouraged by the recommended amendments proposed by Bill C-75; however, we acknowledge that this will involve considerable training for front-line police officers.

Thank you for your time and work on this bill. We'd be happy to take any of your questions.

Thank you.

[Daniel Brown]

Thank you.

Good afternoon, Mr. Chair and honourable members. Thank you for the opportunity to address you all on Bill C-75.

By way of background, I'm a criminal defence lawyer. I practise in Toronto, which is one of the busiest criminal court jurisdictions in all of Canada.

Delay is something that is always on the front of mind of all the justice participants in Toronto—the judges, the Crown attorneys, and the defence. Over the last decade and a half, I've had an opportunity to act as counsel on hundreds of cases, and I hope to speak to you today on my experiences with preliminary inquiries and how they act as ways to preserve efficiency and fairness in the justice system.

As I sat here listening to the last panel, and now to Professor Silver speaking at this one, I was worried. I felt like everyone was starting to steal my thunder. However, I actually take comfort in the fact that it seems as though there's a lot of consensus among all of our views. I take hope from the fact that I share my views with so many different qualified experts.

First and foremost, it's important to state again that a preliminary inquiry isn't a one-size-fits-all. It's something that acts and adapts to different types of cases and different types of situations. It's a tool that can be used in a number of different ways. In some cases, as you've heard, a preliminary inquiry acts as an essential screening tool to weed out weak cases before significant time and energy have been allocated to prosecuting them. When the Crown attorney can't prove that there's some evidence capable of supporting the allegations, some charges or even, as we've heard, the entire case may be dismissed by the preliminary inquiry judge.

In addition to reducing the consumption of scarce court time and resources, this screening function can also reduce the amount of time people spend in custody for something they didn't do or something the Crown attorney simply can't prove they did. As others here have said, it would be a mistake to think that we can simply take the time allocated for a preliminary inquiry and just drop a trial into that time slot.

Preliminary inquiries are much more abbreviated hearings for a number of reasons.

First of all, judges don't make credibility findings at a preliminary inquiry. They must accept the witnesses' evidence at face value. Because of this, lawyers often focus the inquiry on questioning the most important witnesses or exploring legal issues they believe will assist them at trial instead of trying to prove to the judge the witness is not credible or reliable.

Our Criminal Code also equips prosecutors with tools to dispense with calling non-essential witnesses at a preliminary inquiry as long as that evidence meets the basic threshold of being credible or trustworthy. This explains why statistics show that most preliminary inquiries are completed in a day or two, because they are focused on discrete issues intended, in some cases, to demonstrate the strength or reveal the weakness of the Crown attorney's case.

In contrast, presenting a criminal case at trial is far more complex and may require the scheduling of weeks, if not months, of court time. Because of this, criminal trials often happen many months, if not a year or more, after a preliminary inquiry could have taken place.

It's simply good policy to have a mechanism such as the preliminary inquiry in place to screen out weak cases before significant time and resources are expended for their prosecution. This is especially true if accused individuals are remanded into custody pending the outcome of their criminal matter.

Even in cases when some charges aren't dismissed or when the entire case still goes forward to trial, the preliminary inquiry provides an opportunity to have fruitful discussions. As we've heard today, prosecutors may appreciate the significant weaknesses in their case, or as Ms. Dale spoke about in the last panel, defendants may see that there are no holes in the evidence against them and may opt to plead guilty, bringing an end to a prosecution before trial time is spent on it. Preliminary inquiries foster the resolution of trial matters.

It should also be considered whether or not both parties should be required, at the end of a preliminary inquiry, to have a mandatory meeting with the preliminary inquiry judge. We call them exit judicial pretrials. While they're somewhat rare and certainly not mandatory in Ontario, they can help foster additional resolution discussions because the judge, who's heard the witnesses testifying, can give some additional input that may help broker an agreement between the parties before the matter leaves that courthouse and goes to another venue.

In addition to screening and a resolution function, preliminary inquiries also play an important discovery function.

Now, there are some who will question the value of a preliminary inquiry in light of expanded disclosure obligations placed on the police and Crown. However, it must be said that disclosure can't act as a substitute for the discovery function of a focused preliminary inquiry, because while there is a constitutional right to disclosure, there's not a constitutional guarantee to an exhaustively thorough police investigation.

A police officer may simply interview a witness briefly, scribe their interview into a memo book and lay a criminal charge based solely on that information. There's no legal requirement that requires the officer to seek out other witnesses who may have witnessed the events, to collect social media evidence or text messages or to inquire whether or not there's been collusion between the witnesses. Requiring disclosure as an answer to discovery doesn't do it justice.

More importantly, of course, there's no ability to compel Crown witnesses to speak with the defence prior to a preliminary inquiry or outside of the court system. Defence lawyers who are trying to gain information or access to witnesses have no way of ensuring that they can hear that evidence before a case comes to trial.

Preliminary inquiries aren't just a tool for the defence. They can also assist the Crown attorneys, because any witness testimony elicited at a preliminary inquiry can be tendered at trial in the event that a witness later becomes unavailable to testify. We heard about that a little bit in the last panel.

This is especially true of vulnerable witnesses who may be very reluctant to come to court and testify in court, but who have already given their evidence in the preliminary inquiry. That prosecution can be saved by the Crown attorney by tendering the preliminary inquiry evidence, rather than having the case dismissed for a lack of evidence. A preliminary inquiry can also help prepare a Crown witness to testify, and to testify better at a trial by having testified once before at the preliminary inquiry.

There are a number of ways in which preliminary inquiries don't just assist the defence. They assist the Crown attorneys as well.

Preliminary inquiries also keep cases on track. They ensure accurately scheduled trials. They prevent late disclosure or late discovery of relevant medical or psychiatric evidence that can derail a trial and lead to lengthy trial adjournments. Studies have shown that lost trial time due to late disclosure is a significant contributor to the delay problem in Canada.

Because of the role preliminary inquiries play in the screening of weak cases—because they foster resolutions and because they prevent trials from going off the rails—it's my experience that preliminary inquiries don't contribute to delay or create inefficiencies in the justice system. The real question to ask is whether eliminating preliminary inquiries for most serious offences enhances fairness by protecting witnesses who may be required to testify twice in a criminal court proceeding.

While there may be some occasions where Crowns wish to protect vulnerable witnesses, our Criminal Code already offers a complete tool box to address those concerns. For example, as we've heard, where it's warranted, the Crown attorney can prefer a direct indictment and send a case immediately to trial without a preliminary inquiry. That can be done on a case-by-case basis. The Crown attorneys also have the ability to tender prior police statements under section 540 of the Criminal Code to avoid a vulnerable witness having to testify at a preliminary inquiry.

Our Criminal Code also contains a host of other provisions to protect vulnerable witnesses when they testify, including the ability to testify by closed-circuit television or from behind a screen, to order a court-appointed lawyer to cross-examine a vulnerable witness where the accused is self-represented, and to offer publication bans to protect the identities of some vulnerable witnesses. Again, all of this can be done on a case-by-case basis.

A flexible approach to preliminary inquiries, one that allows the inquiry to be tailored to the case at hand, will much better meet the objectives of fairness and efficiency and allow both the Crown and defence to benefit from some of the many advantages a preliminary inquiry has to offer. This approach is far superior to a wholesale elimination of the preliminary inquiry for most offences simply to protect vulnerable witnesses where other options already exist within the Criminal Code to achieve that goal.

I make the following three recommendations to the committee:

Number one is to maintain preliminary inquiries for all indictable offences.

Number two, as Professor Silver said, is to adopt reforms that allow the preliminary inquiry to be streamlined in appropriate cases without eliminating its appropriate discovery function. That's being mindful of some of the recommendations to amend section 537 of the Criminal Code to give preliminary inquiry judges more control and more power over the proceedings.

Number three is to study more substantial reforms that maintain the discovery function of the preliminary inquiry but offer flexibility, such as requiring permission for the court to hold a preliminary inquiry when it would be in the interests of justice to do so, or legislating for out-of-court discovery in cases where committal to stand trial is not an issue.

Thank you for having me. I look forward to your questions.

[Lisa Silver]

Thank you very much.

Mr. Chair and honourable members of the standing committee, thank you for giving me this opportunity to comment on the proposed amendments to the preliminary inquiry sections of the Criminal Code. It is a privilege to be here to speak about an issue that carries the weight of historical discourse and has engaged far greater minds than mine. The question of abolishing the preliminary inquiry has echoed through these halls and the courts of our nations and has indeed engaged the public's interest as well.

How do I come to speak to this matter? I am by trade a criminal defence lawyer, and I've been so from my early days of law school in the mid-1980s. I've conducted preliminary inquiries, I've argued about them as appellate counsel, and I've written about them now as a law professor. Indeed, I've been rather vocal about the preliminary inquiry and these proposed changes. I hope my brief and this opening statement will shed some light on why I believe the preliminary inquiry, albeit in perhaps a different structural format, is worth saving.

I will open with a personal story. It's a story I often repeat to my students when asked which case most significantly impacted me in my early career. The day after being called to the bar in 1989, I received a case from one of the lawyers sharing space with the law firm with which I was employed.

The preliminary inquiry was only two days away. The client, who was detained in custody, was charged with an attempted break and enter with the intent to commit an indictable offence. The maximum punishment for the full offence—because it involved a dwelling house—would have been life imprisonment, but as an attempt, it was punishable by 14 years, still a serious term of imprisonment.

As an aside, under the new proposed amendments, such a preliminary inquiry would not be possible.

It was a rather pathetic and all too familiar story. The client was found loitering in front of a house on the sidewalks of Rosedale—this was in Toronto—holding a pointy and frayed stick. He appeared to be intoxicated. The police were called, and upon investigation of the nearby home, it appeared that the front door lock was freshly scratched with bits of paint that appeared to be derived from his pointed stick.

Appearances, however, may be deceiving. Upon review of the file, I recommended to the client that we argue against committal at the preliminary inquiry. Needless to say, the judge agreed, and the client was discharged and immediately released.

The preliminary inquiry changed my client's life. It gave him hope. In fact, he ended up straightening out. He went back to school and became a youth worker in a young offender facility. I received a postcard from him when he ultimately went to Bosnia as part of the UN peacekeeping tour.

I wanted to share this story with you. I know I was asked here based on my academic credentials and writing in this area, but to me there is no clearer evidence of the importance of the preliminary inquiry as a tool for good than this particular story.

On the less emotional side of the equation, I'm certain you've already heard last week and today—I was listening—many good reasons demonstrating why the preliminary inquiry in its present format must be retained. My brief also outlines the historical significance of the preliminary inquiry as an essential protective shield against the power of the state.

It's more than procedural. We keep calling it a procedural matter, but it's more than that. It lies at the heart of the criminal justice system because, in my view, it is linked with the presumption of innocence and fair trial concepts. The preliminary inquiry calibrates the scales of justice in accordance with those fundamental principles and provides meaningful judicial oversight.

The power of the preliminary inquiry, as I've already alluded to, cannot be taken for granted or underestimated. I know there are questions regarding where the evidence comes from as to whether preliminary inquiries do cause delay, but certainly they do take court resources that are finite. We are, as has already discussed, having a crisis, so to speak, in our court system, as evidenced by those Jordan and Cody decisions.

In fact, as you've already heard, one of the suggestions from the Senate committee on that crisis recommended the termination or limitation of the preliminary inquiry. Bill C-75 has a more tempered vision of the Senate recommendation, but it still goes too far. The amendments do not provide the protection promised by the full operation of preliminary inquiries, and as outlined in my brief on page 5—and I think I have about eight different points there—they don't account for the many other ways the preliminary inquiry assists the proper functioning of the criminal justice system.

Keeping in mind all of these competing concerns and considering that we still have to create a solution to the problem that remains with our desire to provide a fair trial, we need a solution that may perhaps recalibrate, yet one that will maintain the scales of justice as writ large in our common law and charter. In my submission, the solution recommended in the amendments does not do this.

Instead, this honourable committee should consider a more practical and useful solution. It's a solution that lies within easy reach. It can be found in our civil system of justice—you've already heard about it today—in its procedures for civil questioning or discovery.

The discovery system for the most part lies outside of the court. It provides useful evidence for trial. It encourages resolution on the civil side as well. It's available to all superior court civil litigants, and it's predicated on full disclosure. By using that civil system, judicial resources and therefore court resources can be focused in a manner that stays true to the primary committal function of the preliminary inquiry, yet would permit the advancement of those vital ancillary purposes, be it preservation of evidence, building an evidential threshold case for a defence or engaging in resolution discussions.

Where there is a realistic committal issue, a preliminary can be heard by a judge. Where the matter involves one of the other viable purposes for a pretrial questioning, the matter can be heard in a less costly form outside of court in a conference room, where the matter can be recorded for future use at trial.

This recommendation provides a viable alternative to the amendments, it balances competing rights, it's mindful of court resources, and it's already in use.

I thank the chair and the other members of this committee for inviting me to make submissions on what is an integral part of our criminal justice system.

Thank you.

[Laurelly Dale]

Good afternoon. I'm grateful for the opportunity to be before the committee today.

My name is Laurelly Dale. I am a criminal defence counsel of over 11 years. I share an office in downtown Toronto with the reputable John Rosen, and I also have an office in northwestern Ontario, in Kenora.

I am first and foremost an officer of the court. My views today are in response to your invitation to offer my opinion on a fragment of Bill C-75 that would eliminate preliminary hearings.

Extensive consultation with lawyers is necessary to shape our pending laws. As defence counsel, I am but one player in the larger administration of justice. I submit to you that there is a disconnect between reducing delay by eliminating preliminary inquiries. The administration of justice would be obstructed by this removal. It is not a debate between Crown versus defence strategies.

I am also a member of the Criminal Lawyers' Association, and I adopt and support their position on this. It's not my intent to reiterate their position. I'm here today to provide you four reasons justifying my position.

First, disposing of preliminary hearings will not save time. This will have the reverse effect, by causing further delay in court. We're well aware of the Supreme Court of Canada decision in Jordan declaring a specific presumptive ceiling of 30 months with or without a preliminary inquiry. The objective of Jordan is to preserve the section 11(b) charter right to be tried within a reasonable time. It was not to use this case as a weapon that will harm the administration of justice.

The claims that this will reduce court delays are false. Only 3% of cases utilize preliminary hearings. The majority of the cases that did proceed to preliminary hearing were resolved in provincial court. Two major studies have concluded that preliminary inquiries do not contribute substantially to the problem of court delay. Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in superior court. They are often used instead of rather than in addition to trials. They expedite the administration of justice. It is far easier and quicker to get a two- to four-day prelim, as opposed to a one- to two-week trial in superior court.

Recently I've had two matters proceed to prelim that ultimately saved the court from having two very expensive jury trials in the superior court. The first was a consent issue in a sex assault case. We proceeded to prelim. My client was able to truly appreciate the evidence against him in a way that watching video statements cannot. Midway through the day, my client reviewed his position and decided to plead guilty. The complainant left knowing that she would no longer be needed to testify in that matter. In the second, after day one of the prelim, the Crown was made aware of weaknesses in their case. The preliminary inquiry revealed a complete lack of evidence for the charges, resulting in a withdrawal.

None of those results could have been attained in the same time frame had we proceeded directly to the superior court. Preliminary inquiries help formulate accurate trial estimates and deal with front-end applications, discovery issues, and motions.

I ask you to look at the youth criminal justice system. This is an example of an existing system that doesn't have preliminary inquiries except in rare circumstances. There are still delays in the youth system.

I had a youth client who was charged with aggravated assault. The complainant was a child of eight months. The charges were very serious. The child suffered a cerebral hemorrhage that caused permanent damage.

Young offenders are not permitted a preliminary hearing except if charged with murder or as an adult or if proceeded with as an adult. This case is an example of one for which we needed a preliminary hearing. There were major causation issues. The Crown did not produce an expert report, but still wanted to proceed. There was limited medical evidence. In order to fully answer and defend the charge against him, my client required numerous third party records. The section 11(b) time was running out through no fault of the defence. We scheduled the trial not knowing how many experts there would be or if there would be charter issues. We received medical records through third party records application.

From those, we needed further child and family services records to begin the process of organizing our own expert. Evidence substantiating this could be obtained through the testimony of the mother's child, through the trial that would be adjourned mid-testimony to proceed with a third party records application. This is getting very much into the weeds, but it's establishing a real point that from there, transcripts would be ordered and another third party records application scheduled. We'd hear the schedule, wait 60 days to produce the records and another 90 to organize our expert. The trial would resume many months later. This would be our world if we eliminated preliminary hearings in the adult system. This is not how justice was intended to be administered.

The second justification is that both players, defence and Crown, already have tools that can be used to bypass the preliminary hearing. Deciding to have a preliminary hearing requires a case-by-case analysis. We must not assume that they are to be utilized by defence as a delay tactic or to earn higher fees per file. As defence counsel, I am often waiving preliminary hearings for a number of reasons. Sometimes it's because of the offence and jurisdiction, other times my client's in custody, or sometimes it's because of the strength of the Crown's case.

I was counsel involved in a large drug project in Toronto. Multiple accused were involved. We had a five-day prelim scheduled for November, and in a rare move the Crown preferred the indictment. This is a tool that they have. The authorization of the Attorney General is required; however, the Crown has used this tool to now force this matter to skip over prelim right into the superior courts.

The third justification is that Bill C-75 prioritizes false hope of efficiency over trial fairness. Section 7 of the charter guarantees both substantive and procedural safeguards to those accused of a crime. It is important to remember that preliminary inquiries are only available to those facing indictable offences, lengthy prison sentences and significant consequences if convicted. This extra step adds a layer of protection against wrongful convictions of the most serious crimes.

I was raised in northwestern Ontario. My paternal grandmother was Métis. My office in Kenora covers a substantial territory in the north. We participate in circuit court. Each week, roughly, we attend remote aboriginal reservations by squishing into cigar planes and crossing our fingers in the hopes that we land through the fog and ice sometimes. It is well known, sadly, that aboriginal peoples are overrepresented in our justice system. In my office located in Kenora, they represent over 90% of my criminal clients.

It is they who will suffer the consequences of this amendment. Adding further delays means they will spend longer in pretrial custody. Removing a safeguard means they will be the most likely to be wrongfully convicted. Bill C-75 did not consider how this would impact the most vulnerable group.

My fourth and last point is that eliminating preliminary hearings ignores the root causes of delay. I'm not here to provide you with an exhaustive list. However, substantive research has established that delay is caused by mandatory minimum jail sentences, disclosure practices, and self-represented litigants.

In conclusion, eliminating preliminary hearings will impede the administration of justice. Discretion is stripped away at the provincial level. Lengthy and expensive superior court trials will become the norm, causing a demand for resources that our system cannot fulfill. There is no data to support Bill C-75. My experience and the available data suggests that eliminating them will, in fact, cause significant delay.

Bill C-75 represents an illogical response to court delay. The public could lose confidence in our administration of justice if our accused are stripped of their ability to make full answer in defence, and court delays inevitably will still exist despite the elimination of preliminary hearings.

Subject to any questions, those are my submissions.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Coming back to the notwithstanding clause, I just wanted to intervene for a second, if I may, colleagues.

Being a member of a community that was impacted by the notwithstanding clause in 1989 as a teenager, seeing how it impacted the members of my community, and seeing how it made many people feel very uncomfortable that their language was banished from public view after a Supreme Court decision and after a promise in an election that bilingual signs would be permitted, I certainly understand the consternation of people when this clause is used. I certainly speak for myself and, I think, for most Liberal members of this committee when we say that we don't support the use of the notwithstanding clause. We certainly share your concerns, Mr. Rankin, about the indiscriminate use of the notwithstanding clause. That is a given.

I do believe that the urgency of the issue is somewhat abated by the decision of the Ontario Court of Appeal to stay the Toronto decision. I think that there probably needs to be some cooling-off period to make sure that when we talk about this issue dispassionately, we understand that it won't be related to one government in one part of the country on one specific decision.

Based on all that I've heard, we currently have a study on Bill C-75 that we're doing, and we're shortly going to get the divorce legislation, Bill C-78. We also have to conclude our study on human trafficking, and we have the study from Mr. Boissonneault on the decriminalization of HIV.

Because I think government members are willing to discuss this with you and see how we can work with you on this, my thought is that perhaps we don't need to vote today; we can bring this back at a later date. Should you wish to vote today, there's no problem. We can still try to find solutions in the future and bring this issue back if there isn't agreement. We always try to find agreement. I don't think today there is one, but maybe at some point in the future there will be.

Go ahead, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thanks very much, Chair. Thanks for your support in getting this before members in a timely way.

Welcome, Tony Clement, to our committee.

This motion is before everyone. You will have received it. I sent a letter out on September 13, and then formally entered the motion on September 14.

It calls on the committee to undertake a study—nothing more, nothing less—into the potential for the routine use of section 33, or the so-called notwithstanding clause of the Constitution Act, 1982.

I've asked that constitutional experts and Attorneys General come to this committee to participate in a true dialogue about the nature of this clause under our Constitution and how Canadians should agree to deploy it in the future.

At the outset, Chair, I have four points to make about the motion.

First, I emphasize that this is not about a particular premier or event. The reason for the motion is that it now appears that some political leaders in our country may believe that the so-called notwithstanding clause can be used in a repeated and routine way, rather than as a tool of last resort to be reserved for very serious public policy matters. I believe that the founders of the charter intended it to be used sparingly, as Alberta Premier Peter Lougheed told his legislature in 1981.

Second, I recognize and acknowledge from the outset that the notwithstanding clause is an integral part of the charter. History will show that in 1981, it was inserted at the instigation of Premier Lougheed, and affirmed by B.C. Premier Bennett, as a compromise, in order that the rest of the charter could be enacted. It was truly the price of admission. I get that. I accept that it is every bit as much a part of the charter as other provisions that are better known and more frequently used.

Third, I'm not now arguing that this important debate needs to take place immediately. I understand that we are conducting a very important study of Bill C-75 right now. I also know that we're intending to study discrimination on the basis of HIV/AIDS. There are many other reasons of timing that may argue against proceeding right away with this study. I get that. I'm perfectly content to delay this conversation until later. All that I'm seeking is a clear commitment from this committee that we will undertake the study. Today all I want is a vote on this matter so that we have it on the record as to whether we are prepared to move forward or not.

Lastly, I believe there is no better forum for a critical conversation like this to take place than the justice and human rights committee.

Colleagues, I can't imagine a more important justice and human rights issue than the potential erosion, indeed trivialization, of our Charter of Rights and Freedoms.

Members, what is my motion about, and what is it not about? This is not a partisan issue. It goes to the very basis of the constitutional arrangements that Canadians entered into in 1982, some 36 years ago. My motion concerns the possibility of any senior government—federal, provincial, territorial—routinely invoking section 33 of the Constitution Act.

As all members of this committee know, when a government invokes section 33, it passes a bill that suspends, for five years, a court decision relating to key charter rights. The notwithstanding clause overrules freedom of expression, freedom of religion, freedom of conscience, and freedom of association. It also deals with legal rights, like the right to life, liberty and security of the person, which was the foundation of a woman's right to choose. That was upheld in the Supreme Court of Canada, of course, in the Morgentaler case, and it was upheld more recently in the right to medical assistance in dying. It can override search and seizure rights and equality rights.

There are many decisions of Canadian courts that have made a difference to the LGBTQ2 community, from equality rights to same-sex couples in social benefits, from Nesbit and Egan all the way to same-sex marriage. These gains could be eroded at any time by a provincial or federal government. Indeed, the record will show, for example, that Alberta Premier Ralph Klein contemplated the use of this clause to override aspects of the same-sex marriage debate in his province.

I reiterate that my motion may have been prompted by, but is not about, a particular decision made in a particular province.

The context of my motion, of course, is well known: the decision by a premier in Ontario, for the first time in that province's history, to use the notwithstanding clause to deal with a dispute between the City of Toronto and the Province.

People may perhaps differ as to whether this kind of situation was what the framers of the charter intended with the notwithstanding clause.

As members know, the Ontario Court of Appeal made it unnecessary in this instance for the Ontario government to invoke the notwithstanding clause.

Again, that particular case is not in issue. However, it was a statement by the Premier that he would routinely and repeatedly use the notwithstanding clause that has caused constitutional lawyers across Canada such grave concern. The Ontario Premier's statement to use it repeatedly has been condemned by most constitutional lawyers and equality-seeking groups across Canada.

I don't know about you, Mr. Chairman, but I have been inundated by calls from prominent constitutional lawyers. I'd refer members to YouTube to see, for example, two colloquiums—one at the University of Ottawa, another at the University of Toronto—that were prompted by recent events and the fear that the Charter of Rights will be eroded.

The possibility of systematic recourse to the notwithstanding clause, and the erosion of the Canadian Constitution are extremely troubling for the generation of lawyers like myself who grew up and practised at the time when Canada adopted the Charter. I believe that over the last 36 years since it came into effect, the Charter was used only 15 times, and by only three Canadian legislatures. This bears witness to the fact that its exceptional use was the express intent of the provincial premiers and the Prime Minister of Canada at the inception of the Charter in 1982. It was meant to be a measure of last resort. The fact that it was only used 15 times in 36 years in only three legislative assemblies attests to that reality.

Both Prime Minister Chrétien and premiers Romanow and Davis, as well as the Honourable R. Roy McMurtry, energetically contended that that was not the intention at the outset. They knew, since they were there.

It is not sufficient to simply express one's disappointment to see the Premier of Ontario use clause 33 to systematically request that judicial decisions in connection with our constitutional rights be annulled, or simply to declare that we have to defend our Constitution. Former Prime Minister Martin swore to never use the notwithstanding clause in connection with federal laws. Former Prime Minister Mulroney is also firmly opposed to the use of this provision.

Could the committee recommend to the federal government that it respect the clear commitment made by two prime ministers, one from the Liberal party and the other from the Conservative party?

Let me be clear. Some have stated that the only two ways to address this issue are to either open up the Constitution and make an amendment to limit the inappropriate use of section 33, or to invoke something that most of us think is a constitutional dead letter, the so-called disallowance power. I want nothing to do with either of those options. I hope I've made that clear.

The reason for my motion is to see if experts and Attorneys General can generate other options. For example, is it now a “convention”—that is, part of our unwritten Constitution—that since the resort to section 33 has been so infrequent, and since the politicians who brought the charter to us have all confirmed the original intent, perhaps there is already a convention to that effect? Alternatively, perhaps Canadian leaders of goodwill could commit to limit its use, as I believe the framers of the charter intended.

Mr. Chair, I don't have all the answers. I don't pretend to. That is why I believe this committee is the appropriate place to show leadership and to try to come up with answers using the best expertise available to us.

In conclusion, thank you for your indulgence. I would ask that each of you consider this motion for what it is: an opportunity to begin an open-minded discussion with constitutional experts and others who may wish to join us, so that we might learn from them and evaluate options that could be employed to protect all Canadians' charter rights from the routine and systematic use of the notwithstanding clause.

I look forward to a vote today on this critically important issue.

Public Safety

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I am here today with a petition that protests Bill C-75, an enormous 302-page omnibus bill that would lighten the sentences on serious crimes, like advocating genocide, polygamy, marriage under 16 years, forced confinement of a minor, etc.

The petitioners ask the Prime Minister to defend the security and safety of all Canadians by withdrawing Bill C-75.